New York Law Journal Spotlights Leitner Center Efforts on Behalf of Missing Chinese Attorney

Martin Flaherty in New York Law Journal, May 21, 2009

by Jeff Storey

A group of New York-based lawyers and legal scholars has joined other alarmed observers of China in attempting to intercede for Gao Zhisheng, a well-known Chinese human rights lawyer who disappeared after he reportedly was forcibly removed from his home by police on Feb. 4.

The Committee to Support Lawyers in China wrote to Minister of Justice Wu Aiying last month to "respectfully ask that you take all necessary steps to investigate Mr. Gao's disappearance and ensure his personal safety and other rights as a citizen of the People's Republic of China. As Mr. Gao appears to have been detained outside of formal legal proceedings and without legal cause, we also urge you to release him without delay."

The expression of support by American lawyers for a beleaguered colleague overseas is reminiscent of the New York lawyers' protests on behalf of Pakistan's chief justice, Iftikhar Muhammad Chaudhry, who was removed from office and placed under house arrest by former President Pervez Musharraf (Read the article in NYLJ, July 2, 2008, subscription may be required).

The New York committee to support Chinese lawyers is a relatively new organization housed at Fordham University School of Law's Leitner Center for International Law and Justice. It is an offshoot of the center's Rules of Law in Asia Program.

Mr. Gao, 44, known for speaking out about official corruption and police abuse, raised the ire of Chinese authorities with his efforts to defend religious freedom and other causes. Once lauded by the justice ministry as one of the country's 10 best lawyers, his license to practice was taken away and his law firm closed down in 2005 because of his condemnation through letters, essays and interviews of police treatment of Falun Gong members, Christians and others.

In 2006, he was detained and received a three-year prison sentence, which was suspended for five years, for "inciting subversion." After a two-month detention in 2007, he described treatment amounting to torture. His family fled China in January due to what they said was constant police surveillance and harassment.

In light of Mr. Gao's assertions that he had been abused, the New York committee wrote the Chinese justice minister that "we fear for [Mr. Gao's] personal safety."

It argued that the detention and harassment of Mr. Gao were inconsistent with United Nations standards on the rule of lawyers, which obligate governments to ensure that lawyers are free to perform their professional functions without "intimidation, hindrance, harassment or improper interference" and that lawyers should not be penalized "for any actions taken in accordance with recognized professional duties, standards and ethics."

Moreover, it suggested that Mr. Gao's predicament is contrary to the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, to which China is a party.

Although China has made "enormous strides" toward building a rule of law, its treatment of Mr. Gao is "by no means an isolated incident," Martin S. Flaherty, a Fordham professor who is a vice chair of the committee, said in an interview. The group estimates that more than 500 attorneys in China have been detained in recent years in connection with sensitive criminal, political, religious, property and environmental cases.

"What is surprising and troubling [about Mr. Gao's case] is that he has been held so long without information," said Mr. Flaherty.

In fact, Jerome A. Cohen, a professor at New York University School of Law and a fellow at the Council on Foreign Relations, said that what has happened to Mr. Gao represents "a relatively new tack" - the use of "thugs" sanctioned by Chinese authorities but operating outside official channels to clamp down on dissidents.

According to the latest U.S. State Department report on human rights in China, released Feb. 25, the government's record "has remained poor and worsened in some areas."

"The government continued to monitor, harass, detain, arrest, and imprison journalists, writers, activists, and defense lawyers and their families, many of whom were seeking to exercised their rights under the law," the report says.

So far, China has not released any information about Mr. Gao in response to the New York committee's letter or any of the other expressions of concern from U.N. agencies, other governments and nongovernmental organizations.

Mr. Flaherty said that "one of the greatest challenges in human rights advocacy is dealing with China," which sometimes bridles at what it regards as interference in its sovereignty. "One has to be very careful."

Here, however, given the unusual nature of the case, the committee made the decision to publicize Mr. Gao's disappearance.

The letter "can't hurt," said Mr. Cohen, a senior adviser to the committee. "We are at rock bottom."

Mr. Cohen said it is unlikely the Chinese would pay any attention to a letter from U.S. lawyers. "But they might pay attention to [Secretary of State] Hillary Clinton," he said.

The committee also wrote to Ms. Clinton (See Letter), requesting her "to ask the Chinese government to immediately verify Mr. Gao's whereabouts and personal safety and, hopefully, reassure those of us concerned about his well being that he is unharmed."

A spokesman for the State Department in an e-mail Friday said the United States is, indeed, "deeply concerned" about the well being of Mr. Gao.

He added that the United States has communicated those concerns "repeatedly, both in Washington and Beijing." In particular, he said that a "senior representative" at the U.S. Embassy raised Mr. Gao's case with "high-level counterparts" at China's Foreign Affairs Ministry on March 23.

He said the U.S. government has called on the Chinese "to ensure that Mr. Gao's treatment while in custody meets international standards."

Ms. Clinton was criticized by some human rights advocates when, after a recent trip to China, she told reporters that she had broached the general issue of human rights, but observed that those issues "cannot interfere with the global economic crisis, the global climate change conference, and the security crisis."

"There are a lot of other considerations going on here," Mr. Flaherty acknowledged.

Nevertheless, he said that U.S. lawyers have an obligation to speak out when lawyers in other countries "are persecuted for doing their job." And he said the Pakistani case shows that their efforts can be effective in publicizing actions against lawyers.

On a personal level, Mr. Cohen said he feels compelled to do whatever he can to help Mr. Gao, whom he has met and regards as a man of tremendous courage.

"I admire the guy," he said.

The Committee to Support Lawyers in China has a 10-member steering committee and is in the process of building a board of advisors. Its chairman is Robert Hornick, a professor at the University of Arizona Law School. The other vice chair is R. Scott Greathead, a litigation partner in the New York office of Wiggin and Dana.